Michael Eugene Begin appeals from a final judgment of conviction and sentence on charges related to his use of the internet and a cellular phone to send sexual messages and photographs to a minor in order to persuade her to have sex with him. Begin pled guilty and was sentenced to 240 months' imprisonment, representing a 30-month upward departure from the top of his advisory Sentencing Guidelines range. On appeal, Begin argues that his sentence is unreasonable because the District Court failed to consider his request for a downward variance based on the asserted disparity between his sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under state and federal law. We will vacate Begin‟s sentence and remand for the District Court to consider his request.

And here is how the partial dissent by Judge Roth gets started:

I concur with the majority’s conclusion regarding the issue of federal/state sentencing disparities. I disagree, however, with the majority’s decision to vacate the sentence and remand to the District Court for consideration of the alleged federal/federal sentencing disparity. I would hold, as a matter of law, that the disparity between the two federal statutes raised here is irrelevant to the consideration of sentence disparities under 18 U.S.C. § 3553(a)(6). I would, therefore, affirm the sentence imposed.

Comments

I've been on the 'Net since the early 90s and consider myself fortunate I've never been interested in meeting minors or viewing CP. Still, not enough people know of the consequences and I found it shocking. 20 years is a long, long time and even without the criminal history it would still be a long time, at least 10 or 15 years. But I find this paragraph troubling.

In support of its motion, the Government presented the testimony of Bradford City Police Officer Todd Erickson who had investigated allegations that Begin had engaged in prohibited sexual contact with three minors that were not included in the PSR. According to Erickson, one of these girls told him that Begin had inappropriately touched her through her clothes and asked her over MySpace to have sex with him. The other two girls had been together in Begin‟s room in Riddle House on several occasions. One reported that Begin had thrust his hand down the front of her pants, and each reported Begin had vaginally raped her, though inconsistencies between their accounts made it hard for Officer Erickson to form a clear picture of exactly what had transpired. (p 8)

This mini-trial appears to be the deciding factor in the upward variance decision. It is troubling because the judge seems to be finding a fact not admitted to or found by a jury. Even if the sentence is still within the stat max, it is troubling because it violates the spirit of the law. How? The Bill of Rights is set up to make accusations courageous rather than hidden little secrets that may be cowardly. That is the purpose of the confrontation clause; the purpose of open indictments; the purpose of public trials; the purpose of a published statutory scheme; the Fourth Amendment (the government being confident enough to be courageous enough to specify what it is doing); the Fifth Amendment (the government is powerful enough to grant power to its subjects and does not fear doing so because it knows it will be righteous in its actions); the Sixth Amendment (same as the Fifth); the Eighth Amendment (because it would be overpowering to hold without just cause). Maybe it is true "facts" like the above were used in criminal sentencing without being charged or tried but where is the proof of that? Did any of our Founders discuss this use of hearsay facts? Are there any very early SCOTUS cases that discuss it? Or maybe sentencing until the guidelines was able to accommodate these "facts" without appearing to enhance a sentence. (2 to life is still 2 to life with or without these kinds of mini trial facts, so maybe it wasn't so obvious.)

Anyone else find this troubling?

Posted by: George | Oct 10, 2012 12:01:10 AM

Could a mini trial be a violation of the Thirteenth A because a sentence is imposed based on elements for which the defendant was not "duly convicted"? It would not suffice to say the sentence is for the elements for which the defendant "shall have been duly convicted" -- and was by plea or verdict -- because the mini trial facts would be redundant and in addition to an otherwise sentence.

So the extra years would serve as an additional sentence in violation of the Thirteenth because the defendant was not "duly convicted" and so suffers "involuntary servitude" by the government for an additional period of time without being duly convicted of those redundant "facts".

federalist would argue that the sentence is strictly for elements already found in the guilt phase for which the defendant was duly convicted and these additional hearsay facts at sentencing are merely icing on the cake, if you will. But that makes it possible for the government to punish for crimes it cannot or will not "duly convict."

But the opinion also considers "respect for the law" and that appears to mean "severe enough" rather than "logical enough."

Posted by: George | Oct 10, 2012 1:59:55 AM

George,

I would say that so long as we are going to have advisory guidelines that are to examine the entire history of the defendant that such things should be fair game. Examining the defendant should not get to be a one-way ratchet. So long as the ultimate sentence is within the statutory range I see no problem with such judicial determinations.

Posted by: Soronel Haetir | Oct 10, 2012 11:40:30 AM

Soronel Haetir--

These questions are an extension of SCOTUS grants cert to reconsider Harris and other discussions. While not identical there are fundamental similarities. It may be settled law that these mini trials are acceptable but I still have trouble with not "duly convicted" facts being used to administer further punishment. In Harris and in this case the judge finds facts when a jury does not. In this case, it may have been strategy that prompted the government to not present these facts to any jury. It permits the government to cut the corners of the Bill of Rights to sentence by proxy.

Nor would it be a one-way ratchet because real convictions would still be fair game. Indeed, your interpretation does away with the presumption of innocence and all of the protections of the Bill of Rights that that entails. Could that be why so much of the media presumes guilt? Maybe the presumption of guilt is acceptable as a matter of law. If so, the most basic foundation of our Constitution is cracked.

Posted by: George | Oct 10, 2012 2:46:00 PM

George,

Given that I am personally in favor of execution for any crime more serious than thefts in the $100 range my only problem with the outcome in this case is the leniency of the ultimate sentence. Once the government proves to the satisfaction of the jury the set of facts sufficient to cross that (admittedly low) bar I really don't care very much about how many months or years the offender ends up sentenced to.

I will say however that I do have some serious reservations about the dodges that have been allowed in getting to that initial proof. For instance I believe that a hung jury should be the same as acquittal, not a chance for a government do-over. And I am deeply troubled by the various dsidesteps of confrontation that have been allowed.

Posted by: Soronel Haetir | Oct 10, 2012 5:39:04 PM

Soronel Haetir,

What if a defendant went into a store thinking he and his accomplice were going to steal the new CD of their favorite singer (less than $100) but it turns out his accomplice had a gun and robbed the place?

The jury finds him guilty of petty theft but not guilty of armed robbery; the judge MUST disagree with the jury at sentencing and MUST find true the armed robbery with a gun.

Was he duly convicted of armed robbery with a gun?

Posted by: George | Oct 10, 2012 6:35:53 PM

The guidelines for internet child porn offenses need substantial revision. These are nasty cases and it is hard to garner much sympathy for these guys, but it makes no sense that someone who actually molests a child receives a much lower sentence than someone who transmits sexual images of or to a child electronically. Most sentences end up at the statutory max because of how the guidelines are calculated and judges are eager to sentence these guys to the max because of the dreadful nature of the crime.